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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ALAN WILLIS, 

 Plaintiff, 

vs. Civil Action 2:12-cv-604 

 Judge Watson 

 Magistrate Judge King 

BIG LOTS, INC., et al., 

 Defendants. 

ORDER 

Defendants have renewed their motion for leave to file certain 

documents under seal. Renewed Motion to File under Seal Certain 

Materials in Support of Defendants’ Memorandum of Law in Opposition to 

Plaintiffs’ Motion for Class Certification and to Appoint Class 

Representatives and Class Counsel, ECF No. 71. Defendants specifically 

ask for leave to file Exhibits L, M, and N to the Declaration of David 

A. Herman under seal, as well as their memorandum in opposition to 

plaintiffs’ motion; defendants ask that they be permitted to file 

Exhibits D, E, F, and G to the Herman Declaration publically. Id. 

Plaintiffs agree that Exhibits L, M, and N and the memorandum in 

opposition should be filed under seal; they argue, however, that 

Exhibits D, E, F, and G should also be filed under seal. Plaintiffs’ 

Response to Defendants’ Renewed Motion to File Documents under Seal, 

ECF No. 72. 

 Although litigants may maintain discovery materials in 

confidence, the actual filing of documents – which implicates the 

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interests of the public in unencumbered access to court proceedings – 

should not routinely be made under seal. Proctor & Gamble Co. v. 

Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996); Brown & Williamson 

Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983). Moreover, 

the local rules of this Court prohibit the filing of documents under 

seal without leave of Court. S.D. Ohio Civ. R. 5.2.1(a). 

 Apparently, plaintiffs or other entities denominated Exhibits D, 

E, F, G, L, M, and N as confidential during the course of discovery in 

this action. The parties agree that Exhibits L, M, and N to the 

Declaration of David A. Herman should be filed under seal. Exhibits L 

and M relate to Herndon Capital Management, LLC (hereinafter 

“Herndon”), an institutional investment management firm specializing 

in equity strategies. Kenneth R. Holley, a Principal and the Chief 

Investment Officer of Herndon, avers that Exhibits L and M “disclose 

Herndon’s confidential and proprietary information relating to its 

detailed investment strategies,” which are maintained in confidence 

and not disclosed to the general public. Affidavit of Herndon Capital 

Management, LLC, ECF No. 71-2, ¶ 6. Exhibit N is the transcript of the 

Rule 30(b)(6) deposition of OakBrook Investments, LLC, another thirdparty to the action and which denominated that document as 

confidential. Janna L. Sampson, Managing Member and Co-Chief 

Investment Officer of OakBrook, avers that her deposition discloses 

“OakBrook’s investment strategy and methodologies” as well as 

“proprietary models reveal[ing] confidential trade secrets about 

OakBrook’s core business.” Declaration in Support of Confidential 

Designations in Deposition Transcript of Janna L. Sampson, ECF No. 71-

3 ¶¶ 4, 6. 

The Court concludes that defendants have adequately established 

that Exhibits L, M, and N should be filed under seal. 

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The parties disagree as to the confidential nature of Exhibits E 

and F, which are described as agreements between plaintiffs’ counsel, 

Robbins Geller Rudman & Dowd LLP (“Robbins Geller”),and the proposed 

class representatives for “portfolio monitoring” in connection with 

potential securities fraud claims. The parties also disagree as to the 

confidential nature of Exhibits D and G, which are described as 

portions of the transcripts of the Rule 30(b)(6) depositions of the 

proposed class representatives, in which the monitoring agreements are 

quoted or discussed. David W. Mitchell, a member of Robbins Geller, 

avers that these monitoring agreements 

describe Robbins Geller’s proprietary processes and 

procedures to protect client assets . . . [and that] the 

disclosure of the [agreements] would harm its competitive 

standing, as competitor firms without such processes and 

procedures and/or different processes and procedures could 

replicate information contained in the [agreements] for 

their own use. 

Declaration of David W. Mitchell, ECF No. 71-4, ¶ 5. Defendants 

disagree that these monitoring agreements are truly confidential, 

particularly in light of the public discussion of these agreements by 

other courts. See City of Pontiac Gen. Employees' Ret. Sys. v. 

Lockheed Martin Corp., 844 F. Supp. 2d 498, 500 (S.D.N.Y. 2012); Iron 

Workers Local No. 25 Pension Fund v. Credit-Based Asset Servicing and 

Securitization, LLC, 616 F.Supp.2d 461 (S.D.N.Y. 2009). 

This Court accepts Robbins Geller’s declaration that its 

monitoring agreements contain proprietary information ordinarily 

subject to protection. Although these, or similar, monitoring 

agreements developed and utilized by Robbins Geller have been the 

subject of consideration by other courts and, although other courts 

have quoted isolated words or phrases in the agreements, see, e.g.,

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City of Pontiac Gen. Employees' Ret. Sys., 844 F. Supp. 2d at 500, it 

does not appear to the Court that that discussion has been so public 

and on such a scale as to divest those documents of their confidential 

character. The Court therefore concludes that Exhibits D, E, F, and G 

are also appropriately filed under seal. 

Defendants also ask that their memorandum in opposition to 

plaintiffs’ motion be filed under seal. Plaintiffs do not oppose that 

request. Because that filing can be expected to make reference to the 

confidential information contained in these exhibits, the Court agrees 

that the memorandum should also be filed under seal. However, 

defendants must file a redacted version of their memorandum on the 

public record within five (5) days of the date of this Order. 

It is so ordered. 

July 29, 2016 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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